Legal thoughts, since 2005.

n. under common law, the right to bring a lawsuit for recovery of goods improperly taken by another. In almost all states the term replevin in no longer used, since the states have adopted "one cause of action" for all civil wrongs.

Today's comedic break, a humorous courtroom outtake, is from Richard Ledere's Collection of 'Transquips'. The essay is a composite of his favorite courtroom bloopers from two books: Humor in the Court (1977) and More Humor in the Court.

These books are out of print, but another book that includes humorous transcripts from court proceedings, Disorder in the Court, can be found in my sidebar to the left. I own this book and it's one of my favorites. It never fails to make me laugh out loud.

In Martin v Fiutko, 2006 NY Slip Op 01981, the Fourth Department considered whether the trial court properly granted the defendant's motion for summary judgment based upon the doctrine of assumption of the risk. In this case, the plaintiff, a snowboarder, was injured when the defendant skied into him.

The Court set forth the relevant law and noted that a voluntary participant in a sport:

consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. However, a participant will not be deemed to have assumed the risks of reckless or intentional conduct. [D]ownhill skiing [and snowboarding] ... contain[] inherent risks including, but not limited to, the risks of personal injury ... which may be caused by ... other persons using the facilities, (General Obligations Law § 18-101), and thus there generally is an inherent risk in downhill skiing and snowboarding that the participants in those sports might collide. (Internal case citations and quotations omitted.)

The Court concluded that the trial court erred in granting the defendant's motion for summary judgment, since there were issues of fact as to whether the defendant's conduct rose to the level of recklessness.

I decided to post about this case, since it sets forth a good summary of the applicable law relating to the assumption of the risk for voluntary participants in a sport. That, and the fact that I thought it was more than ironic that a snowboarder was injured by a skier. What is this world coming to? It's absolute craziness, I tell you. Next thing you know, someone from the Bush administration will admit that thousands of tactical errors have occurred in Iraq.

n. a federal rule of evidence in criminal trials that prohibits the use of incriminating statements made by a defendant while he/she is detained beyond the legal period of time before being brought before a judge or magistrate (arraignment). This rule is seldom applied since the courts have become zealous about speedy arraignments and warnings to the accused about the right to remain silent and have a lawyer present.
See also: Miranda warning.

In an unusual move, former federal prosecutor, Richard Covertino, was indicted on charges of conspiracy, obstructing justice and making false declarations as reported here and here. The indictment stems from a conviction in a terror case from 2003 which was overturned by the judge after prosecutors, including Covertino, discovered that documents that could have aided the defense during the trial were not turned over required. Additional charged were filed against Covertino for his alleged actions in another case wherein it is alleged that he provided false information to a judge in an effort to reduce a defendant's sentence. He faces up to 30 years in prison and an one million dollar fine, if convicted.

As reported in the first article:

The indictment, returned by a grand jury in Detroit where the case originated a week after the September 11 attacks, charged that prosecutor Richard Convertino and State Department special agent Harry Smith III conspired to withhold photographs of a Jordanian hospital they said was a target of the terror suspects.

In fact, the sketches found in the men's dingy apartment on September 17, 2001, did not resemble the hospital at all, the indictment said.

That and other problems with the June 2003 convictions of three of four defendants led a judge to throw out the convictions, creating a huge embarrassment for the Bush administration's declared war on terrorism.

Interestingly, prior to his indictment, Covertino filed a whistle blower suit against the Justice Department and former U.S. Attorney John Ashcroft, for releasing information that he alleged damaged his reputation.

In the suit, he said the department offered little support to his prosecution of the supposed "sleeper" cell, providing a single FBI agent, while officials in Washington hailed the arrests as having defused a potential terror attack.

Convertino told The New York Times, "These charges are clearly vindictive and retaliatory, and it's an effort to discredit and smear someone who tried to expose the government's mismanagement of the war on terrorism."

Well, I for one certainly find it hard to believe that this administration could be guilty of such extreme retaliatory actions, especially when it comes to the "war" on terror. And, if you believe that, I've got a bridge to sell you. It's located in Brooklyn.

n. from Latin for "first born," the ancient rule from feudal England (except in the County of Kent) that the oldest son would inherit the entire estate of his parents (or nearest ancestor), and, if there was no male heir, the daughters would take (receive the property) in equal shares. The intent was to preserve larger properties from being broken up into small holdings, which might weaken the power of nobles. It does not exist in the United States.

Yesterday, the Court of Appeals handed down two criminal decisions. This post focuses on People v. Boyer, 2006 NY Slip Op 02290. I'll address People v. Pacer, 2006 NY Slip Op 02291, in the near future, but in the meantime, Indignant Indigent posted about it here.

At issue in People v. Boyer was whether the confirmatory identification exception established in People v. Wharton, 74 NY2d 921 (1989), was applicable to situations in which a police officer's initial encounter with a suspect and subsequent identification were temporally related, thus making the two part of a single police procedure. In that case, the prosecution failed to serve a 710.30 notice upon the defendant. However, the trial court nonetheless allowed the identifying officer to testify at trial regarding his initial view of the defendant during a foot pursuit and subsequent identification of the defendant 30 minutes later. Another officer had detained the defendant and the identification occurred while he was in custody.

The Court began its analysis by noting that the Wharton exception generally applies to situations where an undercover officer purchased drugs from a defendant and then later confirmed the defendant's identity. The Court stated that:

Thus, the quality of the officer's initial viewing must be a critical factor in any Wharton-type analysis. The risk of undue suggestiveness is obviated only when the identifying officer's observation of the defendant is so clear that the identification could not be mistaken. When there is a risk that the quality of the initial observation has eroded over time, we have consistently held that police identifications do not enjoy any exemption from the statutory notice and hearing requirements.

The Court concluded, quite correctly in my opinion, that the Wharton exception did not apply since the initial viewing of the defendant was fleeting, at best, and thus the identification procedure should have been precluded sine no 710.30 notice was served. As the Court stated, to hold otherwise, would directly contravene the legislative intent behind CPL s. 710.30.

However, some of you may disagree and might very well find the dissent's position in this case to be compelling.

I recently found two great web sites that provide all sorts of interesting information about the Supreme Court.

Oyez includes the pending docket, recent news about the Court, a complete archive of all Supreme Court decisions, audio files of important oral arguments before the Court, in depth biographies of each justice, and a virtual tour of the courthouse.

And, transcripts of all Supreme Court oral arguments since October 2000 can be found here.

The Fourth Department's decision in a recent case, Haist v Town of Newstead, 2006 NY Slip Op 01984, centered around the issue of whether a snowplow driver was liable for the plaintiffs' injuries. Since the snowplow driver was employed by the Town of Newstead, VTL s. 1103(b) was applicable, and thus the town could be held liable only if the snowplow was operated with reckless disregard for others.

This is an important VTL provision to be aware of, since it holds a driver liable only for reckless conduct, as opposed to negligent conduct, for an accident caused by a vehicle "engaged in work on a highway."

In this case, the Court denied the defendants' motion for summary judgment since it concluded that there were issues of fact regarding whether the operator of the snowplow acted with reckless disregard for others.

v. from Greek for "pledge," a generic term for using property to secure payment of a loan, which includes mortgages, pledges and putting up collateral, while the borrower retains possession.
See also: secured transaction.

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